There’s a tingle in the air as talk spreads that the Supreme Court will consider eyewitness identification when it hears Perry v. New Hampshire, the first the court will take a “hard look” at the issue since Manson v. Brathwaite in 1977.
Adam Liptak talks about this in his New York Times Sidebar column (yes, Liptak’s still around).
“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, quoting from a leading study, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”
But of course, eyewitness identification has been the subject of many studies in the past 30 years, all of which show that it’s effectiveness is only trumped by its unreliability.
Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are to wrongful wrong about a third of the time, a pile of studies suggest.
Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.
Of course, the eyewitnesses were absolutely certain in their identifications. And the juries believed them. And almost always do. How can you doubt the nice witness who says, “I will never forget that face”? Even knowing how deeply flawed such testimony can be, it’s compelling. And nearly impossible to challenge.
The only scrutiny that now applies to these identifications relates to those initially made under “unduly suggestive circumstances,” meaning that the suspect is shown to the eyewitness with a neon sign over his head, “this is the guy who did it,” or in a line-up where he’s the only black guy among a group of white men wearing priest collars. Even then, it’s only suppressed where the prosecution can’t prove that the witness’ memory as eyewitness is so awful that there’s no independent basis for the ID. It’s a tough burden.
Will the Supreme finally grab the bull by the horns and address the fact that eyewitness identification is at the heart of more wrongful convictions than any other type of evidence? Well, here’s the issue coming before the court:
When a witness in a criminal case identifies a suspect out-of-court, under suggestive circumstances which give rise to a substantial likelihood of later misidentification, due process requires the trial judge to determine whether the out-of-court identification and any subsequent in-court identification are reliable before either may be admitted into evidence.
Question: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeal and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?
Could the issue get much smaller? Granted, non-police arranged identifications are a fairly common occurrence, with the eyewitness stumbling upon a person on the street (or from her apartment window, as happened in Perry) who looks like the person who did ’em the dirty.
The current state of the law, under Neil v. Biggers , is that only police arranged identifications are subject to scrutiny. The unfortunate premise is that suppression of a bad ID is to teach the cops a lesson, a la the exclusionary rule, as opposed to making sure that innocent people aren’t convicted on bad identifications. Yet again, the gatekeepers of evidence don’t concern themselves with keeping bad evidence out, but only with smacking the hands of law enforcement for being the enablers of bad evidence.
While there are a number of amici, like the American Psychiatric Association , who are trying to slide through the side door the research challenging the underlying reliability of eyewitness identifications, hoping to have the Supremes require that courts scrutinize all identification procedures for reliability under the due process clause, the likelihood of the court seizing the opportunity to make a big ruling, one that addresses the inherent unreliability of IDs, or the procedures that are still being used which we know to contribute to erroneous identifications, like the typical line-up procedure instead of a double-blind.
Will there finally be some relief from incredibly powerful and yet inherently unreliable eyewitness identifications? Don’t hold your breath. The Supreme are barely capable of making a decision that provides a complete answer to the question before them, no less a broader rule that actually provides a framework for the courts to use going forward.
Under the guise of judicial modesty, expect the most narrow ruling possible, and a refusal to acknowledge that any question exists but that eyewitness identification is the most powerful evidence available. After all, without it, a vast number of prosecutions would fail, and defendants be acquitted. That would include the guilty as well as the wrongfully convicted innocent, and we can’t let all those bad people walk the streets when we know they’re guilty as sin.
And if some innocent people are convicted because of the absolute certainty of the mistaken eyewitness, the court will take comfort that the mistake can be corrected by some appellate or habeas court later. Hopefully before they’re executed.
Update: And ironically, today the New Jersey Supreme Court dealt a blow to bad eyewitness IDs:
New Jersey’s highest court ordered changes today to the way eyewitness identifications are used in court, saying the current system is not reliable enough, fails to deter police misconduct and overstates jurors’ ability to evaluate the evidence.
Currently, a defendant has the burden of proving there was undue suggestion during the identification process. That won’t change. But the court has ordered that when a defendant can show some evidence of suggestiveness by police, a pretrial hearing must be held to explore it.
The court also requires a system be developed to better explain to juries the potential flaws with eyewitness identifications.
It’s not a cure, nor does it cover all the inherent evils, but it’s a darn good start and better than we can anticipate from the Supremes.
H/T Ambitious Blondes